Bench Memos

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Andy McCarthy on OLC Nominee Dawn Johnsen


The Senate confirmation hearing for law professor Dawn Johnsen, President Obama’s nominee to head the Office of Legal Counsel in the Justice Department, is slated to take place tomorrow. From the current issue of National Review, NRO has just posted Andy McCarthy’s excellent article on Johnsen, whom he finds “an ideologue, and an unabashed one”, “nothing short of a zealot” on “abortion and other issues dear to the Left”, and “a crusader for whom strident excess is habitual”—in short, exactly the wrong person for “a position calling for dispassionate rigor”. An excerpt:


Johnsen’s other bête noire [besides regulation of abortion] is national security — at least to the extent it involves detaining terrorists and enemy combatants as military opponents rather trying them as civilian criminal defendants. Her 2008 academic article “What’s a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses” gathers the Left’s full array of anti-war tropes and disguises them as legal analysis. There is the determination to ignore the terrorist attacks of the 1990s, such that the War on Terror is presented as something President Bush started after 9/11 rather than a years-long jihadist provocation to which the United States finally responded after 9/11. This framework would make it impossible to prosecute as war crimes such pre-9/11 atrocities as the bombings of the USS Cole and the embassies in East Africa. Johnsen further denigrates as an “extreme and implausible Commander-in-Chief theory” Bush’s rationale for warrantless surveillance of suspected al-Qaeda communications into and out of the United States. In fact, the practice was strongly supported by federal court precedent and has since been reaffirmed by the appellate court Congress created specifically to consider such issues. And Johnsen has recently written that the new administration “should order an immediate review to determine which detainees should be released and which transferred to secure facilities in the United States” for civilian trials.

Tags: Whelan


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